Allows public institutions to consider race, gender or ethnicity in decisions around education, employment and contracting.
What the Measure Would Do
Prop 16 would repeal Proposition 209, which prohibits state and local entities from considering race, gender, ethnicity or national origin in decision-making around employment, education and contracting. Prop. 16 effectively reinstates affirmative action for California, which was eliminated in 1996 with the passage of Prop, 209.
Affirmative action policies first emerged in the United States in the 1960s and prohibited federal government agencies from discriminating in the hiring and treatment of employees based on race; they were later expanded to include gender. Similar policies exist around the world, including quota systems for underrepresented groups in elected offices or targeted recruitment of minority groups in certain industries. From the 1960s to the mid 1990s, California created a number of programs intended to increase opportunity for those who had suffered unequal treatment. Some public universities considered race and ethnicity when deciding admissions or offered programs to support certain students’ academic achievement, and the state created programs to increase the participation of women- or minority-owned businesses in public contracting. The United States Supreme Court has upheld the constitutionality of affirmative action policies in several cases but has restricted their extent, for example by prohibiting the use of racial-based quotas or race-based point systems.1
In 1996, California voters approved the California Civil Rights Initiative (Prop. 209), which amended the constitution to prohibit state governmental institutions from considering race, sex or ethnicity when making decisions about hiring, contracting and education. For the purposes of Prop. 209, “state governmental institutions” include any city, county, public university system, community college district, school district, special district or other local government. Today California is one of eight states that do not have affirmative action-related laws on the books.
Enrollment rates for students of color decreased by roughly 10% across the University of California system in the year immediately following Prop. 209’s passage, and at higher rates at UC Berkeley and UCLA. A 2013 study showed the resultant long-term negative impacts on metrics like employment outcomes for these groups.2 A more recent study tracked every student who applied to the UC system from 1994 through 2002, including their major and degrees, graduation rates and income. The results not only confirmed the decreases in enrollment rates and decreased earnings, but laid out a series of other cascading impacts on a generation of students of color.3
Aside from education, a 2015 study found that the elimination of race-conscious contracting programs has resulted in the loss of roughly $1 billion per year in contracts for minority- and women-owned businesses in California.4
A number of attempts have been made to repeal Prop. 209 in the years since, without success. Following the murder of George Floyd, national protests and widespread demands for racial justice, this measure (which was originally introduced last year) passed in both houses with more than two-thirds support to qualify for the ballot. In June, the University of California Board of Regents publicly called for a repeal of Prop. 209 and support for this year’s Prop. 16. As a constitutional amendment, this measure requires a simple majority (50% plus one vote) to pass.
By allowing the return of affirmative action policies, Prop. 16 could have a significant impact on the public education and employment opportunities for Black, Native American, Latino and other people of color, as well as for women.
Affirmative action and its impact on equality and social justice has been the subject of intense debate in the United States. Proponents argue that considering race as one of a set of metrics in decision-making can account for systemic discrimination and lack of opportunity for women and people of color, particularly Black and Latino people. Opponents argue that affirmative action is its own kind of injustice, creating preferential treatment for some regardless of merit and at the expense of other groups.
In some cases, affirmative action policies have been shown to be effective, particularly regarding higher education. One study of 700 Black students who were preferentially admitted to colleges in part due to their race found that 32% attained doctorate degrees or professional degrees, a similar rate to that of their white counterparts.5 Data from states like Michigan, which removed affirmative action policies in public colleges and universities in 2006, have shown a decrease in enrollment of students of color.
On the other hand, critics point out that increasing educational opportunities hasn’t eliminated the pay gaps between Black and white workers and certainly not the disparity in intergenerational wealth.6 They advocate for interventions much earlier in a child’s education and in other areas with lifelong impact, including housing and healthcare.
- In opening up opportunities in higher education for marginalized students, Prop. 16 would help to spread the benefits of higher education that accrue over lifetimes and generations, including higher wages and wealth.
- Prop. 209 eliminated publicly funded professional development and educational programs designed to help women and people of color succeed. Beyond creating opportunities, this measure would allow more supportive programs to be created.
- Prop. 16 could increase the diversity of public employees, which could lead to more representative and higher quality government service.
- In the absence of affirmative action policies, many public institutions have used less effective proxy metrics (like targeting low-income students) to advance their diversity goals. Prop. 16 would help institutions to more effectively increase diversity among their students, workforce and contractors.
- Prop. 16 could set an example for affirmative action policies in other areas that have seen decades of racial discrimination, like publicly financed housing.
- This measure allows race and other identities to be considered but doesn’t require it. Prop. 16 alone cannot ensure improved outcomes for students, public employees or contractors of color.
California cannot dismantle racism without considering race. Allowing public institutions to consider race in hiring and other decisions is both a common-sense change and a symbolic gesture worthy of this historical moment. It acknowledges that a society that produced slavery, Jim Crow, racial covenants, sundown towns and other less visible but equally pernicious inequities can also produce policies to advance racial justice. Though this measure alone won’t solve the many structural inequities that people of color and women face today, it makes an important step forward in increasing opportunities in education, employment and contracting.
1. See the case of Regents of the University of California v. Bakke, related to a race-based quota system, Library of Congress, https://cdn.loc.gov/service/ll/usrep/usrep438/usrep438265/usrep438265.pdf
2. Zachary Bleemer, “The Impact of Proposition 209 and Access-Oriented UC Admissions Policies on Underrepresented UC Applications, Enrollment, and Long-Run Student Outcomes,” 2020, https://www.ucop.edu/institutional-research-academic-planning/_files/uc-affirmative-action.pdf
3. Kevin Carey, “A Detailed Look at the Downside of California’s Ban on Affirmative Action,” The New York Times, 2020, https://www.nytimes.com/2020/08/21/upshot/00up-affirmative-action-california-study.html
4. Justice Society, “The Impacts of Proposition 209 on California’s MWBEs,” 2015, https://equaljusticesociety.org/wp-content/uploads/2019/10/ejs-impact-prop-209-mwbes.pdf
5. See Bowen and Bok, “The Shape of the River,” 1998.